Date:20021009
Docket:2001-1329-IT-I
BETWEEN:
GIUSEPPE MALERBA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for judgment
GARON, C.J.T.C.C.
[1] This is an appeal from a Determination dated July 21, 2000 in respect of the 1999 taxation year. By this Determination, the Minister of National Revenue informed the Appellant that he was not eligible to the Goods and Services Tax Credit with respect to the 1999 taxation year as he was not a resident of Canada during this particular taxation year.
[2] The Appellant resides in Italy and because of his serious medical condition certified by a medical practitioner he could not travel to Canada for the hearing of this appeal.
[3] By an Order dated November 29, 2001, issued by me, it was ordered, having regard to all circumstances, that this appeal be heard on its merits by way of conference call. Accordingly, the hearing of this appeal was conducted by means of a telephone conference.
[4] In paragraph 9 of the Reply to the Notice of Appeal, the Respondent made the following assumptions:
9. In so issuing the Notice of Determination referred to in paragraph 8 herein, the Minister made the following assumptions of fact:
a) the months specified for the 1999 taxation year with respect to the Credit are July and October 2000 and January and April 2001 within the meaning of subsection 122.5(4) of the Income Tax Act (the "Act");
b) the Appellant was a resident of Italy and a non-resident of Canada at the end of the 1999 taxation year; and
c) the Appellant was not an "eligible individual" within the meaning of subsection 122.5(1) of the Act as he was not resident in Canada on December 31, 1999.
[5] The Appellant deposed in the course of this telephone conference. The Appellant is a Canadian citizen. The Appellant, a bachelor, testified that he lived in Canada with his sister for 27 years. He left Canada in November 1981 for health reasons. Prior to leaving Canada, he disposed of all his properties in Canada, including his bank accounts. He has been residing in Italy with the same sister ever since. The Appellant is receiving from the Canadian Government as a non-resident his old age pension and benefits under the Canada Pension Plan. He made no visits in Canada since 1995.
[6] The T1 General 1999 income tax form signed by the Appellant was filed by the Respondent as Exhibit R-1.
[7] The issue in this appeal is whether the Appellant was entitled to the Goods and Services Tax Credit in respect of the 1999 taxation year.
[8] The entitlement to the Goods and Services Tax Credit is governed by section 122.5 of the Income Tax Act. Subsection 122.5(3) determines the amount that is deemed to have been paid by the individual on account of his tax under Part I of the Income Tax Act for the year during each of the months specified for that year under subsection 122.5(4) of the Act.
[9] As mentioned in subsection 122.5(3) of the Act, the taxpayer must be an eligible individual, which expression is defined in subsection 122.5(1). This subsection reads as follows:
"eligible individual" for a taxation year means an individual (other than a trust) who, at the end of December 31 of that year, is resident in Canada and is
(a) married,
(b) a parent of a child, or
(c) 19 years of age or over.
[10] As appears from this definition, one of the requirements to be met is that the taxpayer must be resident in Canada at the end of December 31 of the year in respect of which the Goods and Services Tax Credit is claimed.
[11] The Appellant was clearly not resident of Canada at any time in 1999 and in particular was not resident in Canada at the end of December 31, 1999. He severed all his ties with Canada many years ago. The Appellant himself did not dispute that he was a non-resident of Canada in 1999. In this respect, it is worth noting the decision of the Supreme Court of Canada in the case of Thomson v. Minister of National Revenue, [1946] S.C.R. 209 and the decision of Judge McArthur of this Court in Smith v. The Queen, [2000] T.C.J. No. 668. The Appellant's Canadian citizenship is not a factor to be taken into account in light of section 122.5 of the Income Tax Act, and more particularly the definition of "eligible individual" in subsection 1 of the latter section.
[12] The Appellant is therefore not entitled to the Goods and Services Tax Credit.
[13] For these reasons, the appeal is dismissed.
Signed at Ottawa, Canada, this 9th day of October 2002.
|
"Alban Garon" |
C.J.T.C.C.
COURT FILE NO.: 2001-1329(IT)I
STYLE OF CAUSE: Giuseppe Malerba and
Her Majesty The Queen
PLACE OF HEARING: Ottawa, Ontario (Conference call)
DATE OF HEARING: October 8, 2002
REASONS FOR JUDGMENT BY: The Honourable Alban Garon
Chief Judge
DATE OF JUDGMENT: October 9, 2002
APPEARANCES:
Agent for the Appellant: Emilia Malerba
Counsel for the Respondent: Rosemary Fincham
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-1329(IT)I
BETWEEN:
GIUSEPPE MALERBA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on October 8, 2002 by
way of conference call in Ottawa, Ontario, by
the Honourable Alban Garon
Chief Judge
Appearances
Agent for the Appellant: Emilia Malerba
Counsel for the Respondent: Rosemary Fincham
JUDGMENT
The appeal from a Determination dated July 21, 2000 made under the Income Tax Act for the 1999 taxation year is dismissed.
Signed at Ottawa, Canada, this 9th day of October 2002.
|
"Alban Garon" |
C.J.T.C.C.